The consumer law regime in Australia is governed at both the federal and state levels.
At the federal level consumer law is governed by the Competition and Consumer Act 2010 (Cth) (CCA) (formerly known as the Trade Practices Act 1974 (Cth)). Consumer protection provisions are contained in schedule two of the CCA, which is known as the Australian Consumer Law (ACL). This regime is regulated by the Australian Competition and Consumer Commission.
The state and territory regime has been adapted from the ACL and is commonly referred to as the Fair Trading legislation of each state and territory. The state regimes are regulated by the relevant consumer protection agencies in each state and territory.
When it comes to commercial transactions and disputes consumer law has very broad application. It is therefore important to consider the potential effect and application of the consumer protection provisions on your commercial transactions and disputes.
We can assist you in understanding your rights and responsibilities under the ACL, including with respect to:
Misleading or deceptive conduct: the ACL contains a strict prohibition against any form of misleading or deceptive conduct, whether by a positive act or refraining from doing an act, which is considered to occur in the course of trade or commerce. For the prohibition to be applicable a person must have been engaging ‘in trade or commerce’ at the time the conduct complained of occurred. The phrase ‘in trade or commerce’ has been the subject of extensive case law and is considered generally to be conduct which bears an inherently trading or commercial character. However, there are various exceptions to this prohibition that may be applicable as a defence to this claim, including puffery and the conduit defence of passing on information.
Unconscionable conduct: businesses are prohibited from engaging in unconscionable conduct as against both consumers and other businesses (including in relation to retail leases). The ACL identifies a list of factors that the courts may consider when determining whether a business has engaged in unconscionable conduct. These factors include the relative strengths of the bargaining power between the parties, whether the conduct was reasonably necessary for the protection of legitimate interests and whether or not there was any undue influence, pressure or unfair tactics exerted by the stronger party. The ACL contains both a statutory prohibition and, where the prohibition is not applicable, also preserves the common law cause of action for unconscionable conduct. Consequently, if your claim does not fall within the ambit of the statutory prohibition you may still have a claim under the general law.
False or misleading statements: businesses must ensure that statements made by a person representing the business, including statements made to advertise or promote the business to customers, are not in any way false or misleading. Specific prohibitions exist in the ACL relating to, amongst other things, the standard, quality, price, age, testimonials, sponsorship, place of origin, guarantees or warranties of goods and services. However, where a statement is nothing more than mere puffery, in certain circumstances it may not be considered to be false or misleading.
Consumer guarantees: the ACL contains twelve consumer guarantees that apply to all goods and services purchased by consumers. A consumer is defined broadly to include either a business or an individual, provided certain requirements are met. Where there is a failure to meet a guarantee the consumer is entitled to a remedy. The type of remedy that must be granted, and who is liable to provide it, will depend on the circumstances of each case. The consumer guarantees are not only applicable to consumers but may also provide suppliers with rights against manufacturers, including the right to recover costs where a supplier is liable to provide a remedy to a consumer as a result of a guarantee failure.
Unfair contracts: the ACL contains a national unfair contract terms law which is applicable to all standard form consumer contracts. A consumer contract may be found to be void and treated as if it never existed where any term of the standard form consumer contract is deemed to be “unfair”.
Commercial disputes: one or more breaches of the consumer protection provisions may be raised in commercial disputes and litigation, whether relating to a consumer and business transaction or a business and business transaction. The issue of misleading or deceptive conduct frequently arises in the context of commercial disputes.
We understand the intricacies of the consumer law and its principles. Whether you are a consumer and you need advice in determining your rights or you are a business and you would like to know more about your rights and responsibilities, this firm can assist you in understanding the application of the consumer law regimes and provide you with cost-effective commercial advice tailored to your situation.